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Fordjour v. Kings County Sheriff Chris Jordan

September 2, 2010

CHARLES FORDJOUR, PETITIONER,
v.
KINGS COUNTY SHERIFF CHRIS JORDAN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS MOOT AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY (Doc. 1) OBJECTIONS DUE WITHIN 30 DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on January 12, 2009.

I. Background

On June 8, 2009, the Magistrate Judge issued findings and recommendations to deny Petitioner's motions for release and for injunctive relief. (Doc. 10.) In the same document, the Magistrate Judge also recommended dismissal of the petition because Petitioner, who complained of his pretrial detention with respect to state criminal charges, purported to proceed pursuant to 28 U.S.C. § 2254, which authorizes habeas relief for persons in custody pursuant to the judgment of a state court; however, due to the pretrial stage of the state court proceedings, there was no state court judgment to which the custody referred.

The Court adopted the findings and recommendations, and the action was dismissed. Petitioner appealed the judgment. By order filed on December 10, 2009, the judgment of dismissal was summarily vacated, and the case was remanded to allow the Court to consider Petitioner's previously filed objections to the findings and recommendations and to enter a new order. On April 1, 2010, the Magistrate Judge vacated the findings and recommendations. (Doc. 21.)*fn1 On April 14, 2010, the action was assigned to the undersigned Magistrate Judge.

On June 29, 2010, the Court issued an order construing the petition as one pursuant to 28 U.S.C. § 2241 because Petitioner was challenging state action during the time that he was a pretrial detainee, and thus Petitioner was not in custody "pursuant to the judgment of a State court" at the time the petition was filed as provided for by 28 U.S.C. § 2254(a) and(b)(1). In such circumstances, it is appropriate for the petition to proceed pursuant to 28 U.S.C. § 2241. 28 U.S.C. §§ 2254, 2241; Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004).

On June 29, 2010, this Court issued an order in which the Court took judicial notice of records of state court proceedings and set forth an analysis of the pertinent legal principles concerning mootness and the mootness of Petitioner's claim. The Court directed Petitioner to show cause in thirty days why the action should not be dismissed as moot. Although the order was served on Petitioner on June 29, 2010, Petitioner did not file a response until after the period for response had passed. However, the Court has considered the untimely response to the order to show cause that was filed on August 16, 2010.

II. Mootness of Petitioner's Claim

A state pretrial detainee may raise a claim concerning the constitutionality of pretrial delay pursuant to 28 U.S.C. § 2241 because he is not in custody pursuant to the judgment of a state court within the meaning of § 2254. McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir. 2003) (pretrial delay concerning right to speedy trial).

Although a claim concerning an arbitrary denial or revocation of bail may be raised in a proceeding for habeas relief, Atkins v. People of State of Michigan, 644 F.2d 543, 549-50 (6th Cir. 1981), it is nevertheless established that a claim concerning the constitutionality of pretrial detention procedures is moot after conviction of the offense because after conviction, such a claim refers to a "prior detention" and thus is moot. Barker v. Estelle, 913 F.2d 1433, 1440 (9th Cir. 1990).

The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981).

The Court takes judicial notice of supplemental exhibits 11 through 14 in support of the petition for writ of habeas corpus and emergency motion for appointment of counsel (doc. 5) filed on May 15, 2009, in a case then pending in this district, Fordjour v. Napolitano, no. CIV S-09-1800 JAM EFB P. The docket reflects that these documents were filed by Petitioner in support of a petition for writ of habeas corpus in which Petitioner challenged his detention by the Immigration and Naturalization Service (INS).

This Court has reviewed pages 57 through 59 of document 5 from the docket of that case, comprising attachment D, which appears to be a certified copy of an abstract of judgment and prison commitment from the Kings County Superior Court, recording Petitioner's conviction pursuant to a plea on February 20, 2009, of a violation of Cal. Pen. Code § 69, obstructing and resisting an executive officer, for which Petitioner was sentenced to a term of sixteen months in prison. Id. at 58. The information filed in the state court case and minute orders of the state court proceedings relating to Petitioner's plea and sentencing follow the abstract of judgment. Id. at 60-67.

It thus appears that because Petitioner has been convicted of and sentenced with respect to an offense with which he was charged during the allegedly unlawful pretrial detention, ...


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